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2013 DIGILAW 239 (AP)

Peta Radha Reddy v. C. V. Manoharan

2013-04-01

K.G.SHANKAR, L.NARASIMHA REDDY

body2013
Judgment : L. Narasimha Reddy, J. The 1st respondent herein filed O.S.No.101 of 2011 in the Court of III Additional District Judge, Tirupati against the appellants and respondents 2 to 5 herein, for the relief of perpetual injunction in respect of the suit schedule property, a hotel at Srikalahasti, Chittoor District. He pleaded that the land on which the hotel was constructed was owned by the appellants and respondents 2 and 3, and his wife by name Saroja, and all of them gave the property on lease to M/s. Swarna Restaurant Private Limited, 4th respondent herein, under a document dated 17-04-2002. The 1st respondent further pleaded that the hotel was given on lease to him under a document dated 01-01-2005 upto 31-12-2031 on a rent of Rs.1,00,000/- per month. Alleging that the appellants and respondents 2, 4 and 5 were interfering with his possession and enjoyment, he filed the suit. He has also filed I.A.No.381 of 2011 under Order 39 Rules 1 and 2 CPC. The Andhra Pradesh State Financial Corporation, Tirupati, 5th respondent herein, which is said to have advanced finances, was impleaded as defendant No.6 in the suit. The appellants filed a counter in the I.A. They pleaded that the Managing Director of the 4th respondent-company is one Smt Anuradha and the so-called lease obtained by the 1st respondent is untenable in law. It was stated that basically the document is inadmissible since it was not registered, though it is said to have been executed for a period of about 25 years. Another plea raised by the appellants was that it was typed on a stamp paper said to have purchased from a person who died long back. The authority of the person, who is said to have executed the document, was also questioned. The trial Court allowed the I.A through its order, dated 02-01-2013. The same is challenged in this appeal. Sri D. Srinivas, learned counsel for the appellants submits that the 1st respondent was not consistent in his stand and resorted to the fabrication of several documents. He submits that taking advantage of the fact that his wife was one of the signatories to the lease deed executed in favour of the 4th respondent, in the year 2002, he manipulated the entire issue and sought to occupy the property. He submits that taking advantage of the fact that his wife was one of the signatories to the lease deed executed in favour of the 4th respondent, in the year 2002, he manipulated the entire issue and sought to occupy the property. He further submits that the trial Court has placed a totally distorted interpretation on the affidavit filed by Smt Anuradha, the Managing Director of the 4th respondent and it was not clear as to who was the Managing Director of the 4th respondent either at the time, when the so-called lease deed was executed or when the order was passed. He submits that the document relied upon by the 1st respondent is not only inadmissible, but is also fabricated, on the face of it. Sri K. Sai Krishna Mohan Rao, learned counsel for the 1st respondent on the other hand submits that the trial Court recorded a finding as to prima facie case and balance of convenience in favour of his client and the same does not warrant interference. He further submits that one Smt Saroja became the Director of the company at a later point of time and it was under her guidance, that a resolution was passed leading to execution of the lease deed. He also submits that the various objections raised by the appellants as to legality of the document need to be examined in detail at the trial. It is also stated that even if the document is inadmissible, it can be taken into account, in relation to the question of possession. The suit filed by the 1st respondent, is the one for injunction simplicitor in respect of an item of immovable property. He has also filed an application under Order 39 Rules 1 and 2 CPC. Basically, it was for the 1st respondent to establish that he is in possession and enjoyment of the property and that he derived the same through lawful means, particularly when he did not contend that he encroached upon the property. Before the trial Court, on behalf of the 1st respondent Exs.P.1 to Ex.P.49 were filed and on behalf of the appellants herein Exs.R.1 to R.3 were filed. The 4th respondent herein filed Exs.R.4 to R.12. It is a matter of record that the land on which the hotel was constructed, was held by five partners including the wife of the 1st respondent. The 4th respondent herein filed Exs.R.4 to R.12. It is a matter of record that the land on which the hotel was constructed, was held by five partners including the wife of the 1st respondent. The lease deed dated 17-04-2002 executed in favour of the 4th respondent was marked as EX.P.2. A perusal of the same discloses that one Smt. Anuradha, was the Managing Director of the 4th respondent company and the transaction was finalized with the participation of one of its directors by name Murugananda Raju. Being a private limited company, the 4th respondent has every right to adjust its affairs and there is every likelihood of change in the composition of its Board of Directors. The 1st respondent claimed the rights over the property as a lessee under an agreement of lease, dated 01-01-2005, which was not received in evidence, because it was not registered. The same is filed as one of the documents before this Court. A perusal of the same discloses that it was executed in favour of the 1st respondent, by Sri Murugananda Raju, in his capacity as Director. However, in the course of arguments, it was urged by the 1st respondent that his wife Saroja was the Managing Director and on the basis of authorization given by her, lease deed came to be executed. The questions as to whether the lease deed was properly stamped and whether the stamp paper on which it was typed can be said to have been procured through proper source, need to be dealt with at the stage of trial. The appellants strongly objected to the very execution of the so-called lease deed in favour of the 1st respondent. According to them, it was not executed by a competent person. Obviously to meet that contention, the 1st respondent filed the affidavit of Smt Anuradha, which reads: "1. I am deponent herein. 2. I humbly submit that I am Managing Director of M/S. Swarna Restaurant (p) Ltd., Srikalahasti. I came to know that Sri C.V. Manoharan filed the above suit basing on the alleged un-registered lease deed dated 01-01-2005 as if the said lease deed is executed in pursuance of the alleged Resolution dated 01.12.2004 as if duly signed by the Board of Directors showing as if I am also one of the alleged signatories. I came to know that Sri C.V. Manoharan filed the above suit basing on the alleged un-registered lease deed dated 01-01-2005 as if the said lease deed is executed in pursuance of the alleged Resolution dated 01.12.2004 as if duly signed by the Board of Directors showing as if I am also one of the alleged signatories. In fact no such Resolution dated 01-12-2004 was passed and I never put my signature in the said Resolution. The plaintiff C.V. Manoharan was once the Manager having maintained the Hotel, he created those documents for the purpose of filing of this case to have wrongful gain. I reserve my right to take appropriate legal steps at the appropriate stage against him. The facts stated above said are true and correct." From this, it is clear that Smt Anuradha asserted that she continues to be the Managing Director of the 4th respondent-company, she did not authorize anyone and the so-called resolution or arrangement leading to lease of the property is a fabricated one. The trial Court, however, gathered a totally different impression from the affidavit. In Paragraph No.22 of its order, the trial Court made the following observation: 22. "In the counter filed by 2nd respondent, it is mentioned that M/s.Swarna Restaurant Pvt. Ltd., was managed by T. Anuradha as Managing Director of M/s. Swarna Restaurant Pvt. Ltd., and it leased out the hotel and lodge to M. Murugananda Raju who is one of the directors of the company. Further according to the respondents, Murugananda Raju is a lessee and lease period is till 2021. Therefore, according to respondents 1 to 4 it was T. Anuradha that was the Managing Director of M/s.Swarna Restaurant Pvt. Ltd. The said T. Anuradha filed third party affidavit before this court stating that on 01-01-2005 there was a Board meeting at their Registered Office, 46/49, Car Street, Srikalahasti at 2.30 P.M. Further it is stated in the third party affidavit filed by T. Anuradha that in the said meeting herself and other Directors passed a resolution in favour of petitioner in the place of then lessee cum Director P. Murugananda Raja. It is further stated in the third party affidavit filed by T. Anuradha that petitioner has taken possession of the petition schedule property as a lessee and he has been running the same and also paying the loan amount regularly to the APSFC and other creditors. It is further stated in the third party affidavit filed by T. Anuradha that petitioner has taken possession of the petition schedule property as a lessee and he has been running the same and also paying the loan amount regularly to the APSFC and other creditors. Third party affidavit of T. Anuradha also show that she was ex-managing director of M/s. Swarna Restaurant Pvt. Ltd., This third party affidavit clearly goes to show that there was a Board meeting on 01-01-2005 and in the said Board meeting, suit property was leased out to the petitioner. The third party affidavit also discloses that T. Anuradha was Ex-Managing Director of M/s. Swarna Restaurant Pvt. Ltd." It does not at all accord with the text of the affidavit. To clear our doubt, we asked learned counsel for the 1st respondent as to whether any other affidavit, sworn to by Anuradha was placed before the trial Court. He stated that the one, which is extracted above, is the only affidavit. Therefore, it is just un-understandable as to how the trial Court gathered the impression that Anuradha stated that there was a meeting of Board of Directors, where it was decided to lease the property to the appellants. Added to that, the trial Court itself was not clear as to whether the appellant is the lessee or a Manager or is working under any other arrangement. That is clear from paragraph 27 of the order, which reads "Even according to the petitioner it is M/s. Swarna Restaurant Pvt. Ltd., that leased out the schedule property to him under the rental agreement dated 01-01-2005 and the said rental agreement said to have been executed by Managing Director of M/s. Swarna Restaurant Pvt. Ltd. It is prima-facie establish that Saroja was Managing Director of M/s. Swarna Restaurant Pvt. Ltd. Therefore, although in a strict sense, it cannot be said that petitioner is a tenant inrespect of M/s.Swarna Restaurant Pvt. Ltd. but it can be said that petitioner was inducted into possession or Management of the M/s. Swarna Restaurant Pvt. Ltd and petitioner has been running hotel business in srikalahasti may be in the name of Saravana Bhavan or Chennai Saravana Bhavan." The important findings that have a bearing upon the valuable rights of the parties cannot be based upon such uncertain and unverified facts. One of the cardinal principles in the matter of examining the applications filed under Order 39 Rules 1 and 2 CPC is that a party claiming that relief must come to the Court with clean hands. Prima facie, we find that there are no bona fides, much less consistency on the part of the 1st respondent, in his effort to get the order of temporary injunction. The trial Court has misread the evidence and misinterpreted the facts borne out by the record. Hence, the appeal is allowed and the order under appeal is set aside. There shall be no order as to costs. The miscellaneous petition filed in this appeal shall also stand disposed of.